The 2010 Colorado Invasion Of Privacy For Sexual Gratification Crime – 18-3-405.6- How Is It Different From The Old Invasion Of Privacy Crime – 18-7-801? – In 2010 – the Colorado State Legislature created an entirely new section of the law pulled from the Colorado crime of Invasion Of Privacy statute 18-7-8-1.

The change was significant.

The new law moved the crime of invasion of privacy for sexual gratification from the unlawful sexual contact statute into its own statute. It increased the sentencing penalty for the crime of invasion of privacy for sexual gratification to a class 6 felony IF:

The accused was previously convicted of an unlawful sexual behavior offense;

or

The defendant observed a person under the age of 18 years during the commission of the crime.

While the original crime of invasion of privacy can be committed by capturing an image of another person’s intimate parts without the person’s consent, the new law adds a “live feed” as an additional means of capturing an image and includes observing a person’s intimate parts as a means of committing the offense.

The new law also classifies the offense – absent the enhancers above named to an extraordinary risk of harm offense under 18-1.3-501. (Misdemeanors classified – penalties)

What Is The Nature Of An Invasion Of Privacy Under Criminal Law?

The key to a “criminal voyeurism statute”is that the invasion is into a location where a person would have a reasonable expectation of privacy, – where a person could expect to – for example – disrobe in privacy, without being concerned that the undressing was being photographed or filmed by another or a place where a person could reasonably expect to be safe from casual or hostile intrusion or surveillance.

A jury would have a tough time ignoring a proven allegation that a defendant placed a hidden camera in a certain location causing the infliction of emotional distress.

Here Is The FORMER Colorado Invasion Of Privacy Law As Amended – 18-7-801

§ 18-7-801. Criminal Invasion of Privacy

(1) A person who knowingly observes or takes a photograph of another person’s intimate parts, as defined in section 18-3-401(2) , without that person’s consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, commits criminal invasion of privacy.

(2) Criminal invasion of privacy is a class 2 misdemeanor

(3) For the purposes of this section, “photograph” includes a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, digitally, or chemically reproduced visual material.

Here Is The New Version Of The Colorado Invasion Of Privacy For Sexual Gratification Law – 18-3-405.6

18-3-405.6. Invasion of Privacy for Sexual Gratification

(1) A person who knowingly observes or takes a photograph of another person’s intimate parts without that person’s consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, for the purpose of the observer’s own sexual gratification, commits unlawful invasion of privacy for sexual gratification.

(2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), invasion of privacy for sexual gratification is a class 1 misdemeanor and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3- 501(3) .

(b) Invasion of privacy for sexual gratification is a class 6 felony and isan extraordinary risk crimesubject to the modified sentencing range specified in section 18-1.3-401(10) if either of the following circumstances exist:

(I) The offense is committed subsequent to a prior conviction, as defined in section 16-22-102(3) , C.R.S., for unlawful sexual behavior as defined in section 16-22-102(9) , C.R.S.; or

(II) The person observes or takes a photograph of the intimate parts of a person under fifteen years of age.This subparagraph (II) shall not apply if the defendant is less than four years older than the person observed or photographed.

(3) For purposes of this section, “photograph” includes a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, or chemically produced or reproduced visual material.

This Is The Colorado Jury Instruction On Invasion Of Privacy for Sexual Gratification

3-4:55 INVASION OF PRIVACY FOR SEXUAL GRATIFICATION

The elements of invasion of privacy for sexual gratification are:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. observed or took a photograph of another person’s intimate parts,

5. without the person’s consent,

6. in a situation where the person observed or photographed had a reasonable expectation of privacy,

7. for the purpose of the observer’s own sexual gratification.

[8. and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]

After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of invasion of privacy for sexual gratification.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of invasion of privacy for sexual gratification.

While Invasion of Privacy Is NOT A Colorado Sex Offense – If It Is For Purposes Of Sexual Gratification It Falls Under Colorado Sex Crimes Laws

16-11.7-102. Definitions.

As used in this article, unless the context otherwise requires:

(3) “Sex offense” means any felony or misdemeanor offense described in this subsection (3) as follows:

…

(y) Invasion of privacy for sexual gratification, as described in section 18-3-405.6, C.R.S.

(2) (a) On and after July 1, 1994, any person who is convicted in the state of Colorado of unlawful sexual behavior or of another offense, the underlying factual basis of which involves unlawful sexual behavior, or any person who is released from the custody of the department of corrections having completed serving a sentence for unlawful sexual behavior or for another offense, the underlying factual basis of which involved unlawful sexual behavior, shall be required to register in the manner prescribed in section 16-22-104, section 16-22-106 or 16-22-107, whichever is applicable, and section 16-22-108.

(b) A person shall be deemed to have been convicted of unlawful sexual behavior if he or she is convicted of one or more of the offenses specified in section 16-22-102 (9), or of attempt, solicitation, or conspiracy to commit one or more of the offenses specified in said section.

16-22-102. Definitions

(9) “Unlawful sexual behavior” means any of the following offenses or criminal attempt, conspiracy, or solicitation to commit any of the following offenses:

…

(aa) Invasion of privacy for sexual gratification, in violation of section 18-3-405.6, C.R.S.;

Defenses To Charges Of Invasion of Privacy Under Colorado Law

The Role Of Consent To The Charge Of Invasion Of Privacy

Consent to the invasion -as confusing as that sounds – may be a defense to both types of Invasion of privacy charges.

While it is NOT an affirmative defense (the prosecutor has to “disprove” consent as an element of the crime – once raised – it IS considered a defense to the elements that must be proven at trial – (see the jury instruction above)

18-3-408.5. Jury instruction on consent – when required.

(1) In any criminal prosecution under section…for a crime listed in subsection (2) of this section or for attempt or conspiracy to commit any a crime listed in subsection (2) of this section, upon request of any party to the proceedings, the jury shall be instructed on the definition of consent as set forth in section 18-3-401 (1.5).

Notwithstanding the provisions of section 18-1-505 (4), an instruction on the definition of consent given pursuant to this section shall not constitute an affirmative defense, but shall only act as a defense to the elements of the offense.

(2) The provisions of subsection (1) of this section shall apply to the following crimes:

….

(f) Invasion of privacy for sexual gratification as described in section 18-3-405.6; or

(g) Criminal invasion of privacy in violation of section 18-7-801.

Other Defenses To Invasion Of Privacy Or Invasion Of Privacy For Sexual Gratification Charges In Colorado

Some defensesto this type of charge can include -but are not limited to:

1. The alleged victim in the case did NOT have a reasonable expectation of privacy under the facts of the case ( example – the photograph was taken in a public place).

2. Consent ( the victim consented to being photographed or recorded – see consent above)

3. You did not KNOW you were invading another’s privacy.

4. The invasion of privacy – if it occurred at all – was not gratify yourself sexually.

The 2010 Colorado Invasion Of Privacy For Sexual Gratification Crime – 18-3-405.6- How Is It Different From The Old Invasion Of Privacy Crime – 18-7-801?

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at – hmsteinberg@hotmail.com – A Denver Colorado Sex Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.

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